Editorial: Ruling sends affirmative action back to the political arena

The Supreme Court Building in Washington, D.C., on March 31, 2012. Photo Credit: Getty Images

It has been 11 years since the Supreme Court ruled that the University of Michigan could use race as a factor in determining admission to its prestigious state law school. Justice Sandra Day O'Connor, the swing vote, famously predicted that while affirmative action policies were still needed in 2003 to diversify higher education, in 25 years they "will no longer be necessary."

Fourteen years remain on O'Connor's clock, but the court last week seemed to accelerate that timetable. Clearly tiring of its role as referee as it wrestled with the sequel to the Michigan case, the justices ruled on Tuesday that not practicing affirmative action was fine, too.

That message from the court is at risk of being obscured by starkly drawn positions in the debate on this topic, where nuanced arguments and creative alternatives can get lost.

After more than 50 years in which race was used to remedy past racial discrimination, a policy that drove and continues to inflame our culture wars, last week's ruling challenges not just Michigan but also the nation to find a better way to make sure colleges and universities reflect the diversity that is America. Such diversity is crucial in higher education, a key arena where we learn how to understand our complex world.

Polling on the issue consistently shows a majority of Americans want to help those who need a leg up. That majority flips to the negative, however, when the question makes clear that such help could come at the expense of someone else or if race is a consideration.

Justice Anthony Kennedy, author of the plurality opinion, wrote, "history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire to a constitutional order in which all persons are treated with fairness and dignity."

Justice Sonia Sotomayor, who proudly attributes her success to the affirmative action programs that helped a Latina from the Bronx get to Princeton University and Yale's law school, said her colleagues' refusal "to accept the stark reality that race matters is regrettable." Her unvarnished criticism continued, "we ought not to sit back and wish away, rather than confront the racial inequality that exists in our society."

That unusually harsh tone prompted a reply from Chief Justice John Roberts. "People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate," he wrote.

So if the justices can't have a courtly debate, how do we move forward? How can we guarantee that talented and qualified future leaders of every stripe have similar opportunities? How do we achieve diversity in a way that doesn't place a toxic mist on the practice, breeding a resentment that used to be called reverse discrimination?

It won't be easy. And perhaps time will be the answer as racial and ethnic changes make the nation less white: 43 percent of those younger than 20 are from minority populations. These demographic changes are ushering in an era of multiculturalism that will make deliberate inclusion policies a thing of the past.

But for now, the issue is locked in a destructive tug of war. Three years after the 2003 ruling, Michigan voters pushed back. They approved an amendment to the state constitution to prohibit race-based preferences in admissions. At the state's flagship undergraduate school, the University of Michigan in Ann Arbor, enrollment of blacks dropped by more than 30 percent.

At the center of last week's ruling was an effort to overturn the ballot initiative. In letting the amendment stand, the court made clear that affirmative action is permissible, but said states could also ban the practice.

Michigan is not alone. Eight states, including California and Florida, have similar prohibitions. Three others -- Ohio, Missouri and Utah -- will vote on bans. Such prohibitions have resulted in substantial drops in the number of black and Hispanic students enrolled while the admissions of Asians, especially in California, have skyrocketed.

Only Texas seems to have been able to keep up its numbers. Its alternative is to guarantee admission to the top 10 percent of the graduating class of each high school. Some public Texas colleges have dropped preferences for children of alumni or are accepting more transfers from community colleges, two other strategies that increase the pool of minority candidates without specifically using racial preferences.

In California, where voters banned consideration of race in 1996, college admissions teams are now evaluating applicants' high schools, taking more students from those that aren't highly rated. It also considers personal hardships and parental backgrounds.

Other states are starting programs that give priority to those who are first in their families to go to college or those from families with lower incomes; both pools contain significant numbers of minority groups. These are all good experiments.

Others are staying the affirmative action course without much pushback. In New York, diversity is promoted in the state university system through an "individualized, holistic" admissions process that takes race and ethnicity into account, according to a brief the state filed in a 2012 Supreme Court case. Thirteen other states joined New York.

The importance of the court's latest affirmative action ruling is the overarching message that perhaps America has matured enough as a nation to let the political process determine how diversity is best achieved. That would require leadership from elected officials, who have largely ducked the issue under the cover of the raging legal battles. And we, the public, must have an honest conversation about how to best provide equal opportunities.